In Re: A.M., T.M., and J.M.-2, 16-0788

DHHR initially filed abuse/neglect petitions against the children’s mother in 2013; petitioner (father J.M.-1) was not named then and temporarily cared for A.M. and T.M.
In June–July 2014 the petition was amended to allege petitioner failed to protect the children and had substance abuse issues after a court-ordered drug screen showed positive or diluted results; petitioner was appointed counsel and, after stipulating, was adjudicated an abusing/neglectful parent for A.M. and T.M.
Petitioner received multiple improvement periods but repeatedly missed or provided diluted drug screens, tested positive for marijuana several times, and had sporadic participation in services and therapy (he was hospitalized for a suicide attempt in 2015 and later discharged from therapy for noncompliance).
In December 2014–June 2015 the proceedings were expanded to include newborn J.M.-2; the court adjudicated J.M.-2 as abused/neglected after taking judicial notice of petitioner’s prior adjudication and failures, and placed the children in foster care and with their respective mothers.
At dispositional hearings the DHHR moved to terminate petitioner’s parental rights; petitioner failed to object to key rulings below (including drug testing, adjudications, and a requested restraining order), and on July 21, 2016 the circuit court terminated petitioner’s parental rights and imposed restraints on contact with J.M.-2 and J.M.-2’s mother.

Issue	Petitioner’s Argument	DHHR/Respondent’s Argument	Held
Whether court violated petitioner’s right to counsel/notice by proceeding on earlier petitions	Earlier failures to appoint counsel/notice violated petitioner’s rights	Moot because later (third) petition containing allegations against petitioner was filed without issue	Moot; claims regarding first/second petitions rendered moot by third petition
Admissibility/validity of court questioning and drug screen at June 23, 2014 hearing	Court erred in questioning and ordering drug screen; later petitions relied on that evidence	Petitioner forfeited objection by failing to object below; cannot raise for first time on appeal	Forfeited; no review on appeal
Sufficiency of evidence/adjudication for A.M., T.M., and J.M.-2 (abuse/neglect)	Evidence insufficient; J.M.-2 was not shown to be abused/neglected	Petitioner stipulated to adjudication as to A.M. and T.M. and silently acquiesced to J.M.-2 adjudication; invited/waived error	Waived/invited error; no plain error; adjudications stand
Validity of restraining order limiting petitioner’s contact with J.M.-2 and J.M.-2’s mother	Restraining order was unconstitutional/improper	Court acted within discretion; petitioner failed to object below	Forfeited by failure to object; restraining order left intact

In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (W. Va. 1996) (standard of review for circuit-court factual findings in abuse/neglect cases)
In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (W. Va. 2011) (application of Tiffany Marie standard)
Maples v. West Virginia Dep’t of Commerce, 197 W.Va. 318, 475 S.E.2d 410 (W. Va. 1996) (litigant may not acquiesce then raise error on appeal)
Noble v. W.Va. Dep’t of Motor Vehicles, 223 W.Va. 818, 679 S.E.2d 650 (W. Va. 2009) (nonjurisdictional issues not raised below are generally not reviewed)
Hopkins v. DC Chapman Ventures, Inc., 228 W.Va. 213, 719 S.E.2d 381 (W. Va. 2011) (invited error and waiver principles)
State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (W. Va. 1995) (plain‑error doctrine elements)
State v. England, 180 W.Va. 342, 376 S.E.2d 548 (W. Va. 1988) (plain‑error doctrine—use sparingly)
State v. Crabtree, 198 W.Va. 620, 482 S.E.2d 605 (W. Va. 1996) (when a right is waived it is not reviewable even for plain error)
W.Va. Dept. of Health & Human Res. Emps. Fed. Credit Union v. Tennant, 215 W.Va. 387, 599 S.E.2d 810 (W. Va. 2004) (presumptions favor correctness of judgement; errors not apparent from record are not presumed)
Riley, 151 W.Va. 364, 151 S.E.2d 308 (W. Va. 1966) (judgment not reversed for error invited by the party)